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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SUSAN MICHELLE PICKENS, :
:
Appellant : No. 738 MDA 2014
Appeal from the Judgment of Sentence Entered March 25, 2014,
In the Court of Common Pleas of Lackawanna County,
Criminal Division, at No. CP-35-CR-0000717-2011.
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 25, 2014
Susan Michelle Pickens (“Appellant”) appeals from the judgment of
sentence of three to twelve months of incarceration imposed following the
revocation of her intermediate punishment sentence. In addition, Appellant’s
counsel has filed a petition to withdraw and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), Commonwealth v. McClendon, 434
A.2d 1185 (Pa. 1981), and Commonwealth v. Santiago, 978 A.2d 349
(Pa. 2009). Upon review, we grant counsel’s petition to withdraw and affirm
the judgment of sentence.
The trial court summarized the factual and procedural history of this
case as follows:
On August 25, 2011, [Appellant] pled guilty to one count
of driving under the influence of alcohol, second offense. At the
guilty plea proceeding, [Appellant] admitted to operating a
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vehicle when her blood alcohol content was .207%. She was
sentenced that same date to a 5 year intermediate punishment
sentence.
On January 10, 2014, a capias for her arrest was issued
due to violation of the conditions of her intermediate
punishment. On March 25, 2014, a Gagnon II hearing was held
and [Appellant] stipulated to the violations of her probation, and
in particular, admitted using and testing positive for cocaine.
Transcript of March 25, 2014 Gagnon II Hearing at 4. [The trial]
court revoked [Appellant’s] intermediate punishment and
sentenced her to 3 to 12 months of incarceration. Id. at 6. The
court ordered that the 3 month to one year sentence would be
followed by 4 years of probation, and that the conditions would
include: not to consume any drugs or alcohol, to refrain from
frequenting liquor serving establishments, to attend 90 AA
meetings in 90 days followed by 3 AA meetings per week, to
complete a drug and alcohol evaluation and follow all
recommendations, and to be on the color system for 90 days
upon parole. Id.
On April 11, 2014 [Appellant] filed a motion for
reconsideration which was denied on April 15, 2014. On April
23, 2014, [Appellant] filed a Notice of Appeal, and on May 1,
2014, [the trial] court ordered [Appellant] to file a concise
statement of the matters complained of on appeal within 21 days
pursuant to Pa.R.A.P. 1925(b). On May 16, 2014, [Appellant]
filed a Statement of Matters Complained of on Appeal.
Trial Court Opinion, 6/20/14, 1–2.
Preliminarily, we must resolve appellate counsel’s request to withdraw.
Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc).
There are procedural and briefing requirements imposed upon an attorney
who seeks to withdraw on appeal. These procedural mandates require
counsel to:
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1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that
he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court’s attention.
Id. at 1032 (citation omitted).
In this case, counsel has satisfied those directives. Within her petition
to withdraw, counsel averred that she conducted a conscientious
examination of the record. Following that review, counsel concluded that
the present appeal is wholly frivolous. Counsel sent Appellant a copy of the
Anders brief and petition to withdraw, as well as a letter, a copy of which is
included with the Anders brief. In the letter, counsel advised Appellant that
she could represent herself or that she could retain private counsel to
represent her. Petition, 7/31/14.
We now examine whether the brief satisfies the Supreme Court’s
dictates in Santiago, which provide that:
in the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel must: (1) provide a summary of
the procedural history and facts, with citations to the record; (2)
refer to anything in the record that counsel believes arguably
supports the appeal; (3) set forth counsel’s conclusion that the
appeal is frivolous; and (4) state counsel’s reasons for
concluding that the appeal is frivolous. Counsel should articulate
the relevant facts of record, controlling case law, and/or statutes
on point that have led to the conclusion that the appeal is
frivolous.
Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).
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Upon review, we conclude that counsel’s brief is compliant with
Santiago. It sets forth the factual and procedural history of this case, cites
to the record, and refers to issues that counsel arguably believes support the
appeal. Anders Brief at 4-6. Further, the brief sets forth counsel’s
conclusion that the appeal is frivolous, and it contains pertinent case
authority and counsel’s reasons for concluding that the appeal is frivolous.
Id. at 7-12.
We are satisfied that counsel has met the requirements set forth in
Cartrette; therefore, we now address the issues raised in the Anders brief,
which are set forth below:
A. Whether the sentence imposed was inappropriately harsh and
excessive and an abuse of discretion?
B. Whether the lower court failed to take into consideration
Appellant’s rehabilitation needs when it imposed its sentence?
Anders Brief at 4.
These issues challenge the sentence imposed as an abuse of the trial
court’s discretion. An appellant may raise a challenge to the discretionary
aspects of a sentence imposed following the revocation of intermediate
punishment, and this Court’s scope of review includes such challenges.
Cartrette, 83 A.3d at 1034. However, it is well settled that there is no
absolute right to appeal the discretionary aspects of a sentence.
Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006). Rather,
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an appellant’s appeal should be considered to be a petition for allowance of
appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e conduct a four-part analysis to determine:
(1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. [708(E)1]; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4)
whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)).
Whether a particular issue constitutes a substantial question about the
appropriateness of a sentence is a question to be evaluated on a case-by-
case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001). As to what constitutes a substantial question, this Court does not
accept bald assertions of sentencing errors. Commonwealth v. Malovich,
903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the
1
Pa.R.Crim.P. 708(E) reads as follows: “A motion to modify a sentence
imposed after a revocation shall be filed within 10 days of the date of
imposition. The filing of a motion to modify sentence will not toll the 30-day
appeal period.”
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reasons the sentencing court’s actions violated the sentencing code. Id. “A
substantial question will be found where the defendant advances a colorable
argument that the sentence imposed is either inconsistent with a specific
provision of the Sentencing Code or is contrary to the fundamental norms
underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d
1128, 1133 (Pa. Super. 2009) (citations omitted).
Herein, the first three requirements of the four-part test are met;
Appellant brought an appropriate appeal, raised the challenge in her post-
sentence motion, and included in the appellate brief the necessary separate
concise statement of the reasons relied upon for allowance of appeal
pursuant to Pa.R.A.P. 2119(f). Therefore, we next determine whether
Appellant has raised a substantial question requiring us to review the
discretionary aspects of the sentence imposed by the trial court.
In the Pa.R.A.P. 2119(f) statement before us, counsel cites cases
involving claims that a sentence was excessive or that the sentencing court
failed to place reasons for the sentence on the record. Anders Brief at 8–9.
However, the Rule 2119(f) statement fails to cite what particular provision of
the Sentencing Code or what specific fundamental norm Appellant’s sentence
allegedly violates. Moreover, counsel “recognizes that the sentence imposed
was within the Sentencing Guidelines for a DUI-BAC .16+; that [Appellant’s]
violation involved the use of cocaine. Thus, the instant appeal does not fall
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within the standards required for a review by the Court regarding the
discretionary aspect of her sentence.” Id. at 9. Nevertheless, we address
Appellant’s claims. See Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.
Super. 2009) (citing Commonwealth v. Hernandez, 783 A.2d 784, 787
(Pa. Super. 2001) (concluding that Anders requires review of issues
otherwise waived on appeal)); see also Commonwealth v. Crump, 995
A.2d 1280, 1282 (Pa. Super. 2010) (“The imposition of a sentence of total
confinement after the revocation of probation for a technical violation, and
not a new criminal offense, implicates the ‘fundamental norms which
underlie the sentencing process.’”); Commonwealth v. Downing, 990
A.2d 788 (Pa. Super. 2010) (holding that failure to consider rehabilitative
needs and protection of society in fashioning sentence raises substantial
question).
“In reviewing a challenge to the discretionary aspects of sentencing,
we evaluate the court’s decision under an abuse of discretion standard.”
Commonwealth v. Stokes, 38 A.3d 846, 858 (Pa. Super. 2011). In
resentencing a defendant, the sentencing court has the authority to consider
the same sentencing alternatives that it had at the time of the original
sentencing proceeding. 42 Pa.C.S. § 9771(b); see Cartrette, 83 A.3d 1030
(citing 42 Pa.C.S. § 9771(b)); Commonwealth v. Phillip, 709 A.2d 920
(Pa. Super. 1998) (same). Once intermediate punishment is revoked, a
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sentence of total confinement may be imposed if the conduct of the
defendant indicates the likelihood that she will commit another crime if she
is not imprisoned. 42 Pa.C.S. § 9771(c)(2). A technical violation can
support a sentence of total confinement when such violation is flagrant and
indicates an inability to reform. Commonwealth v. Carver, 923 A.2d 495,
498 (Pa. Super. 2007); Commonwealth v. Ortega, 995 A.2d 879 (Pa.
Super. 2010). “[T]his Court’s review of the discretionary aspects of a
sentence is confined by the statutory mandates of 42 Pa.C.S. § 9781(c) and
(d).” Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa. Super. 2013)
(quoting Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super.
2009)).2 However, the sentencing guidelines do not apply to sentences
2
Section 9781(c) reads:
(c) Determination on appeal.—The appellate court shall
vacate the sentence and remand the case to the sentencing
court with instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
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imposed following revocation of intermediate punishment. Phillip, 709 A.2d
at 921 (citing 204 Pa.Code § 303.1(b)).
The sentencing court disposed of the proffered challenges as follows:
[Appellant] asserts that the sentence was harsh and
excessive and an abuse of discretion for a technical violation of
probation [sic]. . . This court determined that an intermediate
punishment sentence was no longer appropriate for [Appellant]
since she had admitted to using cocaine while serving her
intermediate punishment in this case. This court decided that
intermediate punishment was not effective in rehabilitating her.
The court thus imposed an appropriate and lawful sentence of
incarceration.
[Appellant] also asserts that the court failed to consider
her rehabilitation needs in sentencing her. However, an
allegation that the sentencing court “failed to consider” or “did
not adequately” consider various factors is really a request that
the Superior Court substitute its judgment for that of the lower
court. Commonwealth v. Griffin, 804 A.2d 1 (Pa. Super. 2002).
When a defendant does not argue that the sentencing court
received incorrect information, but simply alleges that the lower
court inappropriately applied the information, this is effectively a
request for the Superior Court to substitute its judgment for that
of the lower court. Id. at 9. This court considered everything in
[Appellant’s] presentence investigation file, as well as the
information provided by her attorney, including the factors that
42 Pa.C.S. § 9781(c). Pursuant to 42 Pa.C.S. § 9781(d)(1–4), in reviewing
the record, we consider:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
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the defendant claims the court did not consider. The court
specifically ordered that [Appellant] undergo a drug and alcohol
evaluation and follow all recommendations, refrain from
consuming drugs or alcohol, and attend AA meetings upon her
release. Because [Appellant] has not shown that there is a
substantial question that the sentence imposed is not
appropriate under the Sentencing Code or contrary to the
fundamental norms underlying the sentencing process, the
sentence is not inappropriate or excessive and the court has not
abused its discretion.
Trial Court Opinion, 6/20/14, at 3–4.
Upon review, we conclude that neither of Appellant’s sentencing
challenges warrants relief. As the Commonwealth points out:
[Appellant] stipulated to violating one of the conditions [of her
intermediate punishment] by using cocaine. . . [T]he sentencing
guidelines do not apply to sentences imposed as a result of
revocation of intermediate punishment . . . [T]he court was
authorized to impose a sentence of incarceration on Appellant
because intermediate punishment was no longer a viable means
of rehabilitation. The sentence did not excess the statutory
maximum for [Appellant’s] DUI offense.
Commonwealth’s Brief at 1. Additionally, the record belies Appellant’s
assertion that the sentencing court did not consider her rehabilitative needs.
Having heard Appellant stipulate to her drug use, the sentencing court
required Appellant to undergo a drug and alcohol evaluation, follow all
recommendations, refrain from consuming drugs or alcohol, and attend AA
meetings. N.T., 3/25/14, at 6; Trial Court Opinion, 6/20/14, at 4. Based on
the foregoing, we discern no abuse of the sentencing court’s discretion in
imposing the challenged sentence.
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Additionally, following our independent review of the record, we
conclude that Appellant’s appeal is wholly frivolous, and we affirm the
judgment of sentence. Moreover, as we agree with counsel’s assessment of
the appeal, and because we conclude that counsel has satisfied the
requirements for withdrawal, we grant counsel’s petition to withdraw.
Petition to withdraw granted. Judgment of sentence affirmed.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2014
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